IN THE CASE OF: 

		BOARD DATE: 13 December 2023

		DOCKET NUMBER: AR20230005002


APPLICANT REQUESTS: 

*	an upgrade of his Under Honorable Conditions (General) discharge to an 
Honorable discharge
*	to appear at his own expense before the Board in person

APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD:

DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code 
(USC), Section 1552(b); however, the Army Board for Correction of Military Records 
(ABCMR) conducted a substantive review of this case and determined it is in the 
interest of justice to excuse the applicant's failure to timely file.

2.  The applicant states he was discharged from the military over 20 years ago. He is 
requesting an upgrade of his characterization of service so he will have the right to be 
buried in a local Department of Veterans Affairs cemetery.

3.  The applicant enlisted in the Regular Army on 18 August 1994 for a period of 
3 years. He was advanced to the rank/grade of specialist (SPC)/E-4 on 18 November 
1996.

4.  He reenlisted on 21 November 1996 and again on 14 September 2000. His 
reenlistment document shows he held the rank/grade of sergeant/E-5 at the time.

5.  The applicant's record is void of documentation showing the facts and circumstances 
regarding his administrative separation under the provisions of Army Regulation 635-
200 (Active Duty Enlisted Administrative Separations), Chapter 14, for Misconduct. 
However, the following documents show:

     a.  DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) rendered 
for the period from July 2002 through May 2003, shows he was reduced to SPC on 
1 May 2003. It also shows his rater and senior rater indicated that he failed to uphold 
the Army Values of Duty, Selfless Service, and Honor. He also need improvement in the 
areas Competence, Leadership, and Training. It was recommended that he not be 
promoted because his performance during the period was sub-standard, and he had 
reached his maximum potential in the Army.

     b.  Orders 230-1023, issued by Headquarters, 10th Mountain Division (Light Infantry) 
and Fort Drum, Fort Drum, NY on 18 August 2003 show he was to be discharged from 
the Regular Army in the rank/grade of private first class (PFC)/E-3, effective 
3 September 2003.

     c.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active 
Duty) shows he was discharged on 3 September 2003 in the rank/grade of PFC/E-3, 
under the provisions of Army Regulation 635-200, Paragraph 14-12b, due to 
Misconduct with Separation Code "JKA" and Reentry Code "3." His service was 
characterized as Under Honorable Conditions (General). He was credited with 
completion of 9 years and 16 days of net active service. The effective date of his pay 
grade was 24 July 2003. He completed his first full term of service.

6.  Army Regulation 635-200, Chapter 14 establishes policy and prescribes procedures 
for separating members for misconduct. Action will be taken to separate a member for 
misconduct when it is clearly established that rehabilitation is impracticable or is unlikely 
to succeed. A discharge under other than honorable conditions is normally appropriate 
for a Soldier discharged under this chapter; however, the separation authority may 
direct a general discharge if merited by the Soldier's overall record.

7.  Army Regulation 15-185 (ABCMR) provides that the ABCMR begins its 
consideration of each case with the presumption of administrative regularity. The 
applicant has the burden of proving an error or injustice has occurred by a 
preponderance of the evidence. It is not an investigative body. Additionally, an applicant 
is not entitled to a hearing before the Board. Hearings may be authorized by a panel of 
the Board or by the Director of the ABCMR.

8.  In reaching its determination, the Board can consider the applicant’s petition, 
arguments and assertions, and service record in accordance with the published equity, 
injustice, or clemency guidance.


?
BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that partial relief was warranted. The Board 
carefully considered the applicant's record of service, documents submitted in support 
of the petition and executed a comprehensive and standard review based on law, policy 
and regulation, and published Department of Defense guidance for liberal and clemency 
determinations requests for upgrade of his characterization of service.  Upon review of 
the applicant’s petition and available military records, the Board determined there is 
insufficient evidence of in-service mitigating factors to overcome the misconduct. The 
applicant provided no evidence of post-service achievements, or letters of reference in 
support of a clemency determination. 

2.  The Board agreed the applicant was discharged for misconduct and was provided an 
under honorable conditions (General) characterization of service. The Board found the 
applicant’s service does not meet the criteria for an honorable discharge 
characterization.  However, the Board did note that the applicant enlisted on 18 August 
1994 and had immediate reenlistments for the periods of 19961121-20000913 
(21 November 1996 to 13 September 2000) and 20000914-20030903 (14 September 
2000 to 3 September 2003) reflective that he had a prior period of honorable service 
which is not currently reflected on his DD Form 214 and recommended that change be 
completed to more accurately show the applicant’s period of honorable service by 
granting a partial upgrade.

3.  The applicant’s request for a personal appearance hearing was carefully considered.  
In this case, the evidence of record was sufficient to render a fair and equitable 
decision.  As a result, a personal appearance hearing is not necessary to serve the 
interest of equity and justice in this case.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

xx	xx	xx	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a 
recommendation for partial relief. As a result, the Board recommends that all 
Department of the Army records of the individual concerned be corrected by amending 
the DD form 214 for the period ending 16 October 1985 by adding the following 
comment to item 18 (Remarks):  "CONTINUOUS HONORABLE SERVICE FROM 
19940818 TO 20000913."

2.  The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief. As a result, the Board recommends denial of so much of 
the application that pertains to upgrade of the applicant’s Under Honorable Conditions 
(General) discharge to an Honorable discharge. 



	 
I certify that herein is recorded the true and complete record of the proceedings of the 
Army Board for Correction of Military Records in this case.


ADMINISTRATIVE NOTES N/A


REFERENCES:

1.  Title 10, USC, Section 1552(b), provides that applications for correction of military 
records must be filed within three years after discovery of the alleged error or injustice. 
This provision of law also allows the ABCMR to excuse an applicant's failure to timely 
file within the three-year statute of limitations if the ABCMR determines it would be in 
the interest of justice to do so.

2.  Army Regulation 15-185 prescribes the policies and procedures for correction of 
military records by the Secretary of the Army, acting through the ABCMR. The 
regulation provides that the ABCMR begins its consideration of each case with the 
presumption of administrative regularity. The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence. It is not an investigative body. 
The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a 
hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing 
whenever justice requires.

3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel. 

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor 
and entitles the recipient to benefits provided by law. The honorable characterization is 
appropriate when the quality of the member's service generally has met the standards 
of acceptable conduct and performance of duty for Army personnel or is otherwise so 
meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states a general discharge is a separation from the Army under 
honorable conditions. When authorized, it is issued to a Soldier whose military record is 
satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 14 establishes policy and prescribes procedures for separating members 
for misconduct. Specific categories include minor disciplinary infractions (a pattern of 
misconduct consisting solely of minor military disciplinary infractions), a pattern of 
misconduct (consisting of discreditable involvement with civil or military authorities or 
conduct prejudicial to good order and discipline). Action will be taken to separate a 
member for misconduct when it is clearly established that rehabilitation is impracticable 
or is unlikely to succeed. A discharge under other than honorable conditions is normally 
appropriate for a Soldier discharged under this chapter; however, the separation 
authority may direct a general discharge if merited by the Soldier’s overall record.

4.  Army Regulation 635-8 (Separation Processing and Documents), currently in effect, 
states for Soldiers who have previously reenlisted without being issued a DD Form 214 
and are separated with any characterization of service except "Honorable," enter 
"CONTINUOUS HONORABLE SERVICE FROM (first day of service for which DD Form 
214 was not issued) UNTIL (date before commencement of current enlistment)." Then, 
enter the specific periods of reenlistment as prescribed above.

5.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency 
determinations. Clemency generally refers to relief specifically granted from a criminal 
sentence. BCM/NRs may grant clemency regardless of the type of court-martial. 
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to other corrections, including changes in a discharge, which may 
be warranted based on equity or relief from injustice.


//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230005002


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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